Cornell Law Review

Occurring high in the skies above, crimes committed aboard aircraft capture our imagination. These crimes serve as ingredients for Hollywood spectacle, from hijackings,^{11. See, e.g., AIR FORCE ONE (Beacon Pictures 1997) (presenting an example of a Hollywood film centered around a plane hijacking).} to poison darts,^{22. See NON-STOP (Studio Canal 2014).} to smuggled crates full of venomous snakes.^{33. See SNAKES ON A PLANE (Mutual Film Company 2006).} But what happens after the action ends? Behind the scenes, prosecution of in-flight crimes remains in a state of flux. The debate about how to determine a proper venue exemplifies this shifting legal landscape. Recently, statutory and constitutional questions of venue have divided courts and sewn uncertainty as to where defendants charged with in-flight crimes can face justice. This Note calls upon Congress to revise a well-known statute in order to fix the escalating problem of in-flight venue and bring this aspect of criminal procedure into the twenty-first century.

The federal circuits disagree about where to lay criminal venue for in-flight crimes. In 2019, the Ninth Circuit decided United States v. Lozoya, which involved the prosecution of an assault—an unremarkable passenger scuffle—committed during a commercial flight.^{44. 920 F.3d 1231, 1233–34 (9th Cir. 2019).} The defendant was charged in the district where the aircraft landed.^{55. Id. at 1238.} However, the Lozoya court found that the proper venue for prosecuting an assault was the district over which the aircraft was flying during the assault itself.^{66. Id. at 1241.} Key to the Ninth Circuit’s holding was its characterization of the assault as an instantaneous offense rather than a “continuing offense” that spanned multiple districts.^{77. Id. at 1239.} As a point-in-time offense, the court found that the typical statute used for in-flight venue, 18 U.S.C. § 3237(a), was inapplicable, and therefore venue was improper in the district where the aircraft landed (long after the assault was over).^{88. Id. at 1239–40.} Consequently, the Ninth Circuit split with the Tenth and Eleventh Circuits,^{99. As of the publication of this Note, the Ninth Circuit has granted review en banc of the panel’s decision. See United States v. Lozoya, 944 F.3d 1229, 1229–30 (9th Cir. 2019). However, even if the en banc Ninth Circuit joins its sister circuits in their interpretation of § 3237(a), the thorny issues raised by the Lozoya panel would remain. As this Note argues, the solution is to look beyond § 3237(a) in order to resolve these interpretive problems.} which have interpreted § 3237(a) to allow prosecution of in-flight crimes in any district through which the aircraft moves during the flight.^{1010. See United States v. Cope, 676 F.3d 1219, 1225 (10th Cir. 2012); United States v. Breitweiser, 357 F.3d 1249, 1253–54 (11th Cir.), cert. denied, 541 U.S. 1091 (2004); United States v. McCulley, 673 F.2d 346, 350 (11th Cir. 1982).} This circuit split suggests that the intersection of in-flight crime and venue could benefit from academic analysis. Indeed, in light of a documented rise of inflight crime—including disturbing accounts of sexual assault relayed in the courts and popular media—it is imperative to answer this question of where to prosecute these point-in-time offenses.^{1111. See infra Part I.}

This Note will argue that the Lozoya court properly rejected § 3237(a) in light of constitutional venue safeguards. Despite the fact that venue depends upon the nature of the particular elements of the underlying crime,^{1212. See United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999).} § 3237(a) depends on broad interpretations of statutory terms like “continuous” or “interstate commerce” to reach in-flight crimes that often have little, if anything, to do with these legal concepts.^{1313. See infra subpart III.B.} The Lozoya court, then, was correct to point out that courts have used § 3237(a) to create a legal fiction.

Nevertheless, while the Lozoya decision may be legally sound, its holding creates unacceptable venue obstacles for both prosecutors and defendants of in-flight crimes in the age of jetliners.^{1414. See infra subpart III.C.} Constitutional limits on criminal venue require a defendant to be tried where the crime occurred. Without a sensible statute to provide venue for in-flight crimes, point-in-time offenses committed during flight could only be laid within a single district. The problem is that district—whose only connection to the crime is existing thirty thousand feet below where the defendant acts—could be highly inconvenient for all of the parties involved, and worse, could be impossible to determine. With the rise of everyday air travel, a new legislative solution is required: one that looks beyond conventional venue borders that exist on the ground.

Consequently, this Note proposes looking to an entirely different statute. A small amendment to 18 U.S.C. § 3238—better known as the “high seas” statute—would create a common-sense solution to this unsettled area of criminal procedure. Just as § 3238 delineates the “high seas” as a physical zone for venue, so too could it add a clause recognizing a “high skies” zone of national navigable airspace.^{1515. 18 U.S.C. § 3238 (2018).} A “high skies” zone would streamline venue problems by guaranteeing a workable venue for any crime—both point-in-time and continuous—committed during flight. While this solution calls into question assumptions of vertical state territoriality, this Note argues that legal decision makers have long rejected such assumptions in practice when it comes to governing the high skies.

This Note will proceed in four parts. Part I will explore the growth of in flight crimes and explain why prosecuting this unique subset of crimes will become more imperative in the future. Part II will provide background on the constitutional limitations on venue, the policies that those limitations serve, and the current federal statutes that could apply to in-flight crimes. Part III will proceed to analyze the circuit split regarding § 3237(a) and the legal and policy problems of the holdings on both sides. Finally, Part IV will propose that Congress resolve that circuit split by rewriting § 3238 to include a high skies clause that provides venue for all in-flight crimes, as well as defend that clause against fairness or federalism critiques.

To read more, click here: Venue Above the Clouds: Prosecuting In-Flight Crimes By Creating A “High Skies” Law.